Tuesday, February 14, 2017

The 25th Amendment Option: Law and Politics

Mark Tushnet

After less than a month (!), impeachment talk is in the air. Color me quite skeptical: Nothing will happen until enough "important" Republican politicians decide that it's time to throw Trump overboard. They're getting some modest things they like from some of his Executive Orders (but real problems from the immigration EO), the hope that eventually they'll put legislation in front of him that he'll sign, and a lot of tzuris from him. They could get the first two, and not the third, from President Pence. But, the word on the street is that Republicans are afraid that Trump's core supporters will retaliate against them if they are seen to have pushed Trump overboard.

There's another route, though -- the 25th Amendment. When the Vice President and a majority of the Cabinet declare that the President is "unable to discharge the powers and duties of his office," and send that declaration to Congress, the Vice President immediately becomes Acting President. The (now not quite) original President then can send his own declaration to Congress, "Yes, indeed, I'm able to discharge the powers and duties," and he becomes President (again) -- unless the Vice President and a majority of the Cabinet send another declaration, "No he isn't." within four days. At that point Congress has two days (if in session) to determine by a two-thirds vote in both Houses that yes indeed he is unfit. If the vote goes against the President, the Vice President becomes Acting President (apparently until the end of the original President's term -- so Pence would have the title Acting President, not President).

Republicans in Congress can't keep their hands entirely clean in this process. As things now stand, at least nineteen Republican Senators would have to vote that Trump is unable to discharge, etc. (unless Trump goes without a peep after the first letter to Congress). (And I think that Democrats would be well-advised to insist that Republicans adhere to the Boehner Rule -- "We won't vote that he's unable to discharge, etc., unless a majority of you do" -- for obvious reasons.) But, the letter from the Vice President and a majority of the Cabinet would give congressional Republicans some political cover -- "Look, even his people -- the ones he chose, and one you chose [Pence] -- think it's time for him to go; don't be too mad at us."

The legal part of all this is, What does "unable to discharge the powers and duties" mean? The clear intention of the Amendment's drafters was to deal with situations of physical and mental disability (Garfield for the eleven weeks between his being shot and his death, Wilson after his stroke). But that's "expected applications" originalism. The text is compatible with an interpretation in which "unable" means "unfit by demonstrations of sustained and serious failures of temperament" (or something along those lines). Another way to put it is that "unable" should be interpreted in a way just short of Gerald Ford's "high crimes are whatever a majority of the House think they are" standard: If there's a reasonable case to be made that the President is unable to discharge, etc., according to some reasonable understanding of "unable," the 25th Amendment is satisfied.

[Now for even more of the "I smoked too much of the wrong stuff" stuff. As I read the 25th Amendment, when the process I've described is followed, there might be a "vacancy in the office of the Vice President" -- although that reading isn't forced upon you (maybe Pence would be both Acting President and Vice President, though that too creates an awkwardness in connection with the Vice President's role as presiding officer in the Senate). If so, Acting President Pence gets to nominate a Vice President, who takes office on confirmation by a majority vote in both houses. I think Acting President Pence should -- in some "good government" sense of "should" -- nominate a centrist Democrat as Vice President. And, even more, I think that the Cabinet members who signed the letter to Congress should resign their positions (the ones who have divested lots of assets will be pissed at doing that), and that Acting President Pence should reconstitute a Cabinet of national unity, with a substantial number of Democrats. The even more extreme version of this, which someone else suggested -- I can't remember who -- is that Acting President Pence nominates Hilary Clinton to be Vice President and then, after her confirmation, resigns as Acting President and maybe even as Vice President.]

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